B.S. Verma, J.
1. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the order dated 6- 8-2003 passed by respondent No. 1 annexed as Annexure No. 5 to the writ petition, whereby the appeal preferred by the respondent No. 2 Bana Ram Taneja (since deceased) was allowed and the release application moved by him under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act) has been allowed.
2. Relevant facts giving rise to the present writ petition in brief are that the deceased respondent No. 2 Bana Ram Taneja filed an application under Section 21(1)(a) of the Act before the Prescribed Authority alleging therein that the applicant is landlord of three shops situated at Krishnanagar Colony Kankhal, Haridwar. Out of which two shops are given on rent while in the third shop, the elder son of the applicant is doing his business. The application for release has been filed showing bona fide need of the application for the disputed shop in the tenancy of the petitioner to maintain the widow daughter of the applicant. It has been alleged that the opposite party used to sell bun and biscuits on cycle and he usually keeps the disputed shop closed. The opposite party has a shop established in his house on the road on which he can do his business and no hardship would be caused to him. It has also been alleged that there are many shops lying vacant in the vicinity of Krishna Nagar Colony, which the opposite party may take on rent.
3. The opposite party-petitioner contested the application by filing his written statement. He has asserted that the opposite party has been doing his general merchant business in the disputed shop on rent @ Rs. 225/- per month since the year 1985. The landlord has been pressurizing him to raise the rent for some time and he refused to realize the rent. Consequently, the rent for three months was sent through money order, which was refused by the landlord. Thereafter, the tenant deposited the rent under Section 30(1) of the Act in the court of Munsif. The applicant has no bona fide need for the disputed shop. The applicant sits in shop No. 1 and he is assisted by his son Ashwani Kumar. The applicant being very old is unable to do business work and he has sufficient income from the said shop. The applicant has given one house on rent @ Rs. 750/- per month and he has also income from selling milk; that the applicant is not burdened to maintain his widow daughter Smt. Kaushalya Devi and her two children. The husband of Smt. Kaushalya Devi died in a motor accident and she has got compensation of Rs. 2,50,000/- on that count. She used to do service in a school and she has sufficient means to maintain.
4. In support of his case, the landlord filed evidence by way of affidavits and also filed certificates etc. as Annexures to the affidavit, while the opposite party-petitioner has also filed affidavits.
5. The learned Prescribed Authority after hearing the parties and after perusing the evidence has held that the applicant failed to prove his bona fide need for the shop in dispute. Consequently the release application was rejected vide order dated 20-3-1999. 6. Aggrieved by the said order, the applicant-landlord preferred an appeal before the District Judge Haridwar, which was registered as Rent Control Appeal No. 34 of 1999. The said appeal was ultimately transferred to the court of Additional District Judge/ 4th Fast Track Court, Haridwar for disposal. The appellate court after hearing both the parties and perusing the evidence available on record came to the conclusion that the need of the appellant- landlord is bona fide and the balance of comparative hardship also tilted in favour of the landlord. Accordingly, the appeal was allowed and the order passed by the Prescribed Authority was set aside and the release application moved by the landlord under Section 21(1)(a) of the Act was allowed vide judgment and order dated 6-8-2003, which is impugned in this writ petition.
7. I have heard learned Counsel for the parties and perused the material placed before this Court including the impugned order and the counter version filed on behalf of the respondents. In the case at hand, it is pertinent to mention that the sole landlord-respondent No. 2 Sri Bana Ram Taneja has died during the pendency of the writ petition and the deceased has been substituted by him legal representatives/respondent Nos. 2/1 to 2/6.
8. For a just decision of this writ petition, a reference to the provisions of Sub-section (1) and Sub-section (7) of Section 21 of the Act is necessary. The relevant part of Section 21 reads as under:
21. Proceedings for release of building under occupation of tenant.- (1) The Prescribed Authority may, on an application of the landlord in that behalf order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely-
(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust;
* * * * * *(7) Where during the pendency of an application under Clause (a) of Sub-section(1), the landlord dies, his legal representatives shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased.
9. In the case at hand, initially the landlord Bana Ram Taneja, who was arrayed as respondent No. 2 to the petition, moved an application for release of the disputed shop under Section 21(1)(a) of the Act on the ground his bona fide requirement to do business so as to maintain his widowed daughter before the Prescribed Authority, who however rejected the application of the landlord. On an appeal being preferred against the order passed by the Prescribed Authority, the appellate court ultimately allowed the release application by the impugned order dated 6-8-2003. Aggrieved the tenant-petitioner preferred the present writ petition. During the pendency of the writ petition, the original landlord Bana Ram Taneja has died and now he has been substituted by his legal representatives.
10. In view of the subsequent events and in the light of the above provision of law, the short controversy to be resolved in this petition is whether the legal representatives of the deceased would be entitled to prosecute the release application on the basis of their own need in substitution of the need of the deceased.
11. Learned Counsel for the petitioner has contended that the release application of the landlord was wrongly allowed by the appellate court because the need of the landlord cannot be termed to be bona fide. Learned Counsel for the petitioner further submitted that the landlord has sufficient means to maintain his widowed daughter, who had also received handsome amount of compensation on account of accidental death of her husband. Learned Counsel for the petitioner has drawn the attention of the court to the finding recorded by the two courts below that the widowed daughter of the landlord is working in a school as a teacher. Learned Counsel for the petitioner further submitted that the need of the landlord has come to an end as the landlord has died during the pendency of the writ petition. Learned Counsel, therefore, argued that on account of death of the landlord, the release application ought to have been rejected.
12. In reply, the learned Counsel appearing for the landlords, who are legal heirs of the deceased landlord Bana Ram Taneja, has argued that it is not disputed that Smt. Kaushalya Devi having become widowed has been residing in her Mayka along with her two children. Learned Counsel for the respondents therefore argued that the need of the widowed daughter of the deceased landlord shall be considered due to the death of the landlord. Since there is no alternative accommodation for Smt. Kaushalya Devi to start her business, this Court may pass suitable order considering the subsequent events. Learned Counsel has also contended that the legal representatives of the deceased landlord can prosecute the release application on the basis of their need in substitution of the need of the deceased. In support of his contention, learned Counsel has placed reliance in paragraph 33 of the case of Kedar Nath Agrawal (dead) and Anr. v. Dhanraji Devi (dead) by LRs. and Anr. : (2004) 8 Supreme Court Cases 76, wherein the Apex Court has observed as under:
33. Conjoint reading of Clause (a) of Sub-section (1) and Sub-section(7) of Section 21 makes it clear that where the possession is sought by the landlord on the ground of bona fide requirement and during the pendency of the application, the landlord dies, his legal representatives can prosecute such application on the basis of their own need in substitution of the need of the deceased.
13. Learned Counsel for the respondent Nos. 2/1 to 2/6 has vehemently argued that the widowed daughter of the deceased landlord Bana Ram Taneja has filed an affidavit in this Court wherein she has categorically stated that the deponent who is one of the landlady requires the shop in question to start her own business because the deponent is an unemployed widow. Learned Counsel also urged that this affidavit filed by the deponent Kaushalya Devi remained uncontroverted, therefore, it would be seen that the requirement of the co-landlady i.e. Smt. Kaushalya Devi is bona fide and the writ petition should have been dismissed outright.
14. From a perusal of the record, it is obvious that the release application was moved by the deceased landlord Bana Ram Taneja on account of his bona fide requirement to start business as well as to maintain his widowed daughter and her two children. Admittedly the landlord-respondent No. 2 has died during the pendency of the writ petition. Keeping in view the provisions of Sub-section (7) of Section 21 of the Act, I hold that the legal representatives of deceased landlord Late Sri Bana Ram Taneja including his widowed daughter, Smt. Kaushalya Devi, are entitled to prosecute the release application. It is well settled that the finding of bona fide requirement is a finding of fact and in exercise of writ jurisdiction, this Court is not expected to record a finding of fact including bona fide need. In view of the subsequent event of the death of sole landlord-respondent No. 2, it would be of no use to discuss other contentions of the learned Counsel for the parties.
15. In the case of Kedar Nath Agrawal(Dead) and Anr. (supra), the Apex Court had an occasion to consider the provisions of Section 21(1) (a) and Section 21(7) of the Act. This case law is fully applicable to the facts of the case at hand. The finding of bona fide requirement is a finding of fact. This Court in exercise of writ jurisdiction must refrain from recording such a finding, therefore, in the facts and circumstances of the case, it would be in the interest of justice that the matter is remanded to the appellate court to decide the appeal (Rent Control Appeal No. 34 of 1999) in the light of the aforesaid provision of law considering the subsequent event of the death of landlord. The appellate court shall decide the appeal afresh considering the relevant provision of law and the need of Smt. Kaushalya Devi, widowed daughter of the deceased for the disputed shop. It would be open to the appellate court to take further evidence in the appeal in accordance with law, if considered necessary. Since the litigation between the parties is since the year 1996, the appellate court shall decide the appeal expeditiously.
16. For the reasons and discussion aforesaid, the writ petition is disposed of in the manner that the impugned order dated 6-8-2003 passed by the learned appellate court is set aside on account of subsequent event since the respondent No. 2 Sri Bana Ram Taneja has died during the pendency of the writ petition and the matter is remanded to the appellate court to decide the appeal afresh on merits in the light of the observations made in the body of this judgment and in accordance with law after giving opportunity of hearing to both the parties expeditiously, preferably within a period of six months from the date of production of certified copy of this order. The learned appellate court shall also afford opportunity to the legal representatives of the deceased to substitute the name of the deceased appellant Bana Ram Taneja through his legal representatives-respondent Nos. 2/1 to 2/6 in the said appeal. However, the opposite party-tenant shall not be evicted till the disposal of appeal. Costs easy.